IN THE COMMONWEALTH COURT OF PENNSYLVANIA

JBS Distribution LLC, :

Petitioner :

:

v. : No. 3 C.D. 2016

: SUBMITTED: August 19, 2016

Workers' Compensation Appeal :

Board (Delgado), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge 

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE HEARTHWAY FILED: November 16, 2016

JBS Distribution LLC (Employer) petitions for review from an order 

of the Workers’ Compensation Appeal Board (Board) that affirmed the order of a

Workers’ Compensation Judge (WCJ) granting the petition for review/

reinstatement filed by Mirta Irizarry-Delgado (Claimant). Employer argues the 

WCJ’s decision was not supported by substantial, competent medical evidence. It 

contends the opinions of Claimant’s medical expert were insufficient to show a 

causal relationship between the work injury and Claimant’s current condition. 

Specifically, Employer asserts the opinions of Claimant’s expert were based on 

material inaccuracies and equivocal as a matter of law. Because the Board 

affirmed the WCJ, who relied on incompetent and equivocal medical evidence, 

Employer claims the Board committed reversible error. We agree and reverse to 
2

the extent the Board amended the work injury to include an aggravation of the 

degenerative lumbar disc disease and an aggravation of the chronic right shoulder 

pain.

I. Background

Claimant worked for Employer for 12 years as a meat inspector. Her 

duties included standing on a ladder, pulling frozen hamburger using a meat hook, 

and inspecting pieces of meat weighing about 40 pounds. On October 2, 2012, she

sustained a work injury when she fell from a ladder onto a concrete floor, striking 

her left elbow. At that time, Employer’s infirmary treated her left elbow. 

Claimant does not speak English so she communicated her injuries through a 

Spanish interpreter. She marked only her left elbow on the pain diagram Employer

provided, which was in English. Employer issued a medical-only notice of 

compensation payable, accepting a left elbow contusion as the work injury.

Claimant continued to work in a full-duty capacity until July 26, 2013, 

when she stopped work based on the advice of her treating physician, Stuart 

Kauffman, D.O., who is board certified in family practice (Treating Physician). 

Claimant then filed a review/reinstatement petition to expand the work injury 

description to include lumbar pathology and seeking ongoing wage loss benefits

based on Treating Physician’s opinion. He recommended Claimant stop work 

because her job “[was] pretty rigorous ... requiring lifting and standing and pulling 

and pushing and manipulating the upper extremities. I [didn’t] feel she could safely 

do that currently with the condition she has.” Reproduced Record (R.R.) at 78a.

In December 2013, Employer filed a termination petition based on an 

independent medical examination (IME), alleging Claimant’s full recovery. 
3

William H. Spellman, M.D., a board-certified orthopedic surgeon, performed the 

IME (Employer’s Expert). 

The WCJ conducted hearings on the parties’ petitions. In support of 

her review/reinstatement petition, Claimant testified on her own behalf and she 

presented the deposition testimony of Treating Physician. 

Claimant testified regarding her injury and her medical condition. 

While descending from a ladder, her foot became caught in a hose at the last step, 

causing her to lose her balance and fall to the concrete floor. She put her arm out 

to break her fall and struck her left elbow on a metal grate. When she landed, she 

“felt [her] back crack” at her belt line. R.R. at 21a. She explained she marked 

only the left elbow on Employer’s pain diagram at the infirmary because that was 

where the nurse told her to mark, and they did not let her mark all the areas she felt 

pain. She testified she felt pain on her “entire body.” R.R. at 39a. She did not 

seek outside treatment for almost four months because the nurse advised her she 

could not see an outside doctor for three months. In March 2013, Claimant first 

sought treatment for her low back pain with Dr. Panagiotis Zenetos.1 She testified 

she did not experience low back pain before her work injury. R.R. at 35a.

Treating Physician focuses half of his practice on pain management. 

He began treating Claimant for her shoulder and low back pain in June 2013. He 

did not treat Claimant for her left elbow, and emphasized “her main problems are 

her [right] shoulder and her low back.” R.R. at 103a. He observed Claimant lost 

range of motion in her right shoulder, lost flexion in her lumbar spine, and had

spasms in her low back. He noted Claimant had a prior work injury in 2002 to her 

 

1 Claimant testified she did not continue treating with Dr. Zenetos because he was located 

in New York, and “it was really hard for [her] to get there.” Reproduced Record (R.R.) at 24a. 
4

right shoulder. Based on his review of Claimant’s 2013 MRIs of her lumbar spine, 

right shoulder, and left elbow, his observation and her medical history, he 

diagnosed Claimant with “chronic low back pain due to multilevel disc herniations, 

anterior spondylolisthesis, and neuroforaminal impingement at L4. ... chronic right 

shoulder pain, which is an aggravation of a preexisting shoulder condition, as well 

as chronic left elbow pain.” R.R. at 77a. 

Treating Physician opined Claimant’s shoulder and spinal conditions 

“certainly would be – could be consistent with a patient falling as [Claimant] had 

done at work on that injury of 10/2/12.” R.R. at 68a. On re-direct, he explained 

the lumbar MRI showed degenerative and non-degenerative changes that consisted 

of “herniated discs, as well as spondylolisthesis, as well as the right-sided 

foraminal stenosis, which is probably a combination of degenerative as well as 

nondegenerative changes.” Id. at 105a. He opined a fall such as the one Claimant 

described could aggravate underlying degenerative conditions. Assuming her right 

shoulder conditions predated the work injury, he opined the fall could potentially 

aggravate those conditions. 

In support of its termination petition, Employer presented the 

deposition testimony of Employer’s Expert. When examining her for the IME, 

Employer’s Expert opined that Claimant did not manifest symptoms from her right 

shoulder. As to her low back, he observed “a slight induration extending from the 

L3 spinous process distally to the sacrum and laterally to the iliac crest ...” from 

which she had ongoing problems. R.R. at 136a. He opined only the left elbow 

contusion related to her work injury. Id. at 142a-43a.

Based on the record evidence, the WCJ granted Claimant’s review/

reinstatement petition. She concluded Claimant “met her burden ... that her work 
5

injuries were more extensive than a left elbow contusion and included injuries to 

her low back and right shoulder,” Conclusion of Law No. 2, and amended the work 

injury “to include an aggravation of degenerative lumbar disc disease, an 

aggravation of her chronic right shoulder pain, and left elbow chondramalcia.” 

WCJ Op., 11/4/14, Finding of Fact (F.F.) No. 11. The WCJ also found Claimant’s 

condition worsened as of June 27, 2013, causing total wage loss, and awarded 

ongoing wage loss benefits at a weekly rate of $512.19. The WCJ denied 

Employer’s termination petition. The WCJ credited the testimony of Claimant and 

Treating Physician, and she rejected the testimony of Employer’s Expert as “too 

simplistic,” F.F. No. 9, and undermined by the 2013 MRIs, F.F. No. 2(d). 

Specifically, she credited Treating Physician’s opinion “that Claimant sustained 

low back injuries and aggravation of chronic right shoulder pain, and left elbow 

injuries as a result of her fall at work ... because it is supported by the MRI tests.” 

F.F. No. 8. Employer appealed to the Board.

The Board affirmed, concluding Treating Physician’s opinion was

competent evidence supporting the expanded injury description and the award of 

wage loss benefits. Bd. Op., 12/10/15, at 7. Employer filed a petition for review 

to this Court, only as to the grant of Claimant’s review/reinstatement petition.

II. Discussion

On appeal,2 Employer argues the Board committed reversible error by

affirming the WCJ’s order because her findings were based on Treating Physician’s

incompetent and equivocal medical opinions. Specifically, Employer asserts 

 

2 Our review is limited to determining whether an error of law was committed, whether 

necessary findings of fact were supported by substantial evidence, and whether constitutional 

rights were violated. Dep’t of Transp. v. Workers’ Comp. Appeal Bd. (Clippinger), 38 A.3d 

1037 (Pa. Cmwlth. 2011).
6

Treating Physician’s opinion is incompetent as a matter of law because it is based 

on inaccuracies. Employer also contends Treating Physician’s opinion as to 

causation of Claimant’s lumbar condition is equivocal. 

Claimant bears the burden of proof on her review/reinstatement 

petition. Jeanes Hosp. v. Workers’ Comp. Appeal Bd. (Hass), 872 A.2d 159 (Pa. 

2005) (review petition); Dillon v. Workmen’s Comp. Appeal Bd. (Greenwich 

Collieries), 640 A.2d 386 (Pa. 1994) (reinstatement petition). If an employer fails 

to present contrary credible evidence, the claimant’s testimony, if credited by the 

WCJ, is sufficient to support a reinstatement of benefits. Harding v. Workers’ 

Comp. Appeal Bd. (Arrowhead Indus.), 706 A.2d 896, 900 (Pa. Cmwlth. 1998).

When a claimant seeks to amend a work injury through a review petition, she has 

the burden to prove her disability has increased and that the original work injury 

caused the amended disability. Jeanes Hosp.; Huddy v. Workers’ Comp. Appeal 

Bd. (U.S. Air), 905 A.2d 589 (Pa. Cmwlth. 2006). 

“Unequivocal medical evidence is required where it is not obvious 

that an injury is causally related to the work incident.” City of Pittsburgh v. 

Workers’ Comp. Appeal Bd. (Wilson), 11 A.3d 1071, 1075 (Pa. Cmwlth. 2011). 

The equivocality of a medical opinion is a question of law fully reviewable by this 

Court. Carpenter Tech. v. Workmen’s Comp. Appeal Bd. (Wisniewski), 600 A.2d 

694 (Pa. Cmwlth. 1991). Similarly, the competency of medical evidence is a legal 

conclusion reviewable on appeal. Pryor v. Workers’ Comp. Appeal Bd. (Colin 

Serv. Sys.), 923 A.2d 1197 (Pa. Cmwlth. 2006).

By contrast, it is solely for the WCJ as fact-finder to assess credibility 

and resolve evidentiary conflicts. Waldameer Park, Inc. v. Workers’ Comp. 

Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). As such, the WCJ may 
7

reject the testimony of any witness, in whole or in part, including medical experts. 

Griffiths v. Workers’ Comp. Appeal Bd. (Red Lobster), 760 A.2d 72 (Pa. Cmwlth. 

2000). A single medical expert’s testimony is a reasonable basis upon which a 

WCJ may base a finding of fact despite conflicting evidence. Bethenergy Mines, 

Inc. v. Workmen’s Comp. Appeal Bd. (Skirpan), 572 A.2d 838 (Pa. Cmwlth. 1990), 

aff’d, 612 A.2d 434 (Pa. 1992).

A. Accurate Foundation

Employer challenges the competence of Treating Physician’s opinion

because it did not account for Claimant’s alleged long history of low back pain. 

Employer relies on Newcomer v. Workmen’s Compensation Appeal Board (Ward 

Trucking Corp.), 692 A.2d 1062 (Pa. 1997), and Chik-Fil-A v. Workers’ 

Compensation Appeal Board (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002) in support. 

Both Newcomer and Chik-Fil-A involved medical opinions that were 

based on inaccurate medical histories. In both cases, the medical experts’ opinions

were rejected as incompetent because the opinions were contrary to other evidence 

of record and were inconsistent with the claimants’ medical history. Both cases 

are distinguishable from the circumstances here. 

In Newcomer, the claimant sought reinstatement of benefits for a 

shoulder injury more than two years after sustaining a work injury to the chest. In 

lieu of medical records documenting the original injury, the testifying physician 

relied solely on the medical history reported by the claimant. In that history, the 

claimant reported he injured his shoulder in the initial work incident. Crucially, 

the claimant’s later account of the injury to the physician differed from his 

description in initial treatment records and earlier hearings, when he did not 

mention a shoulder injury. Based on this discrepancy, the Board rejected 
8

physician’s testimony regarding causation of the shoulder injury as incompetent. 

Our Supreme Court agreed with the Board, holding that testimony based on a false 

medical history was incompetent as a matter of law.

In Chik-Fil-A, the claimant sought compensation for a back injury. 

She claimed she had not experienced severe back pain before a work incident. 

However, on cross-examination, she acknowledged she treated for back and neck 

pain for more than 10 years. Notably, claimant’s medical expert did not review 

prior medical records. Rather, her expert based his opinions solely on claimant’s 

false medical history, despite its inconsistency with his own test results. Because 

the expert’s opinion was based on claimant’s false medical history, and was 

inconsistent with test results, this Court held the opinion lacked proper foundation. 

Employer’s argument and reliance on Newcomer and Chik-Fil-A 

assumes that Claimant rendered a false medical history to Treating Physician, who 

in turn, relied on that history for his opinion. However, unlike the above cases, 

there is no evidence in the case before us that Claimant lied about her injury or her 

medical history.

Employer assumed Claimant experienced a long history of back pain

based on the records of Dr. Zenetos, who treated her from March through July 2013. 

During cross-examination, Employer characterized the records as showing 

Claimant had back pain of a gradual onset for more than 15 years. Treating 

Physician confirmed the records stated Claimant had pain for more than 15 years; 

however, the note did not specify back pain. R.R. at 87a. Thus, he believed 

Claimant that she did not experience low back pain before the work injury. 
9

Notably, these medical records are not part of the evidentiary record. 

Yet, they are the only basis from which Employer surmises Claimant rendered a 

false medical history to Treating Physician. 

Treating Physician’s review and understanding of another physician’s 

medical records does not undermine the competency of his opinion. At most, his 

review of other medical records goes to the weight of his testimony, which is 

within the exclusive purview of the factfinder. Marriott Corp. v. Workers’ Comp. 

Appeal Bd. (Knechtel), 837 A.2d 623 (Pa. Cmwlth. 2003).

Regardless, a medical expert’s opinion is not rendered incompetent 

unless it is solely based on inaccurate or false information. Casne v. Workers’ 

Comp. Appeal Bd. (Stat Couriers, Inc.), 962 A.2d 14 (Pa. Cmwlth. 2008). Here, 

Treating Physician’s opinion is based on his personal observations, his 6-month 

treatment history, and his review of Claimant’s medical records, including 

objective diagnostic studies of her lumbar spine, right shoulder and left elbow. 

These form a proper foundation for his medical opinions. 

Unlike the records in Newcomer or Chik-Fil-A, here, the evidence

reflects no long-standing history of back pain. To the contrary, Claimant testified 

she did not previously experience low back pain. R.R. at 35a. The WCJ credited 

her testimony. F.F. No. 6. We do not disturb a WCJ’s credibility determinations 

on appeal. Waldameer Park. Claimant’s testimony, which is not contradicted by 

other record evidence, constitutes competent evidence that is consistent with the 

medical history relied upon by Treating Physician. Accordingly, we reject 

Employer’s challenge to the competence of Treating Physician’s opinion.
10

B. Equivocality

Employer also contends that Treating Physician’s opinion “that the 

cause of these conditions can be consistent with the type of fall and injury 

[Claimant] sustained on 10/2 of 2012” is equivocal. R.R. at 77a-78a (emphasis 

added). Employer maintains that use of the word “could” or “can” connotes 

possibility, rendering his opinion equivocal as a matter of law. 

We determine equivocality by reviewing a medical expert’s testimony 

in its entirety. Lewis v. Workmen’s Comp. Appeal Bd. (Pittsburgh Bd. of Educ.), 

498 A.2d 800 (Pa. 1985). “A medical witness’s use of words such as ‘probably,’

‘likely,’ and ‘somewhat’ will not render an opinion equivocal so long as the 

testimony, read in its entirety, is unequivocal and the witness does not recant the 

opinion or belief first expressed.” Bemis v. Workers’ Comp. Appeal Bd. 

(Perkiomen Grille Corp.), 35 A.3d 69, 72 (Pa. Cmwlth. 2011). 

However, our Supreme Court consistently holds “statements that an 

assigned cause ‘could have’ been the cause of the condition have repeatedly held to 

be legally insufficient.” Cardyn v. Workmen’s Comp. Appeal Bd. (Heppenstall), 

534 A.2d 1389, 1392 (Pa. 1987); see Lewis, 498 A.2d at 800 (expert vacillated 

with repeated use of “could have” as to causation). “Where medical testimony is 

necessary to establish a causal connection, the medical witness must testify, not 

that the injury or condition might have or possibly came from the assigned cause, 

but that in his professional opinion the result in question did come from the 

assigned cause.” Id. at 802; see also Jones v. Workers’ Comp. Appeal Bd. (J.C. 

Penney Co.), 747 A.2d 430, 431 (Pa. Cmwlth. 2000) (reversing Board’s affirmance 

of WCJ; expert testimony using “could have” and “it’s possible” is equivocal).
11

Reviewing Treating Physician’s testimony as a whole, we are not 

convinced that it meets the legal standard for an unequivocal medical opinion. 

Here, Treating Physician had multiple opportunities to testify within a reasonable

medical certainty as to causation, and he failed to do so. He testified as follows:

[Direct]

Q: Did you have an opinion at that time regarding the cause of 

all those injuries that you just recited?3

A: Based on the patient’s history and physical exam, as well as 

some of the diagnostics studies that I reviewed, it certainly 

would be—could be consistent with a patient falling as 

[Claimant] had done at work on that injury of 10/2/12.

****

Q: What is your opinion regarding the cause of all those 

conditions?

A: I believe that the cause of these conditions can be consistent 

with the type of fall and injury that she sustained on 10/2 of 

2012.

 

[Cross]

Q: “[As to the right shoulder MRI] [s]o the impressions that are 

noted in the April 2, 2013 portion of the MRI report that are 

listed here one through five, it’s possible all of these conditions 

could have been in [Claimant’s] shoulder prior to October 2, 

2012?

A: Absolutely.

Q. Doctor, I guess the same would follow with respect to the 

MRI of the lumbar spine on March 21, 2013 in that you didn’t 

review any study of her lumbar spine before March 21, 2013?

 

3

Treating Physician testified that Claimant “has chronic low back pain associated with 

multilevel disc herniations and anterior spondylolisthesis with neuroforaminal impingement at 

L4, aggravation of pre-existing right shoulder pain, and rotator cuff injury to the right shoulder, 

and a Hill-Sachs deformity of the right shoulder.” R.R. at 67a.
12

A. Correct.

Q. So the conditions that were noted on March 21, 2013 could 

have existed prior to October 2, 2012?

A. It’s quite possible.

** **

Q. Doctor, you would agree with me that someone that has –

she’s 60 years old – someone that has significant pre-existing 

degenerative conditions in their [sic] spine can experience

herniations without the incident of trauma?

A. Sure. Sure. Disc herniations can occur without a specific 

trauma in some patients, yes. That’s true.

 

Q: You’d agree with me that that type of information 

[mechanism of injury] might be important in rendering a 

determination as to causation?

A: It can certainly be important. But it wouldn’t change my 

opinion because any type of fall could certainly cause any of 

these injuries.

** **

[Redirect]

Q: [Regarding the degenerative changes in the lumbar MRI], 

would a fall such as the one that [Claimant] described to you, 

could that potentially aggravate underlying degenerative 

conditions?

A: Yes. Absolutely.

 

Q: “[As to the shoulder MRI], would a fall of this nature –could 

it potentially aggravate any of the conditions listed in that 

study?

A: Yes.

Q: Similarly, could any of those impressions or findings on that 

study be caused by a traumatic incident?

A: Yes. 
13

** **

Q: Could a trauma such as the one [Claimant] described to you 

cause injuries of that nature?

A: Yes.

R.R. at 68a, 77a-78a, 91a-92a, 93a, 96a, 105a-06a (emphasis added).

These quoted excerpts from Treating Physician’s testimony reveal he 

used the same phrasing, “could,” when he testified Claimant’s conditions stemmed 

from other causes as when he attributed causation to her work injury. At best, 

Treating Physician testified that the work injury could have caused Claimant’s 

lumbar condition and aggravated her right shoulder injury. The only time he 

opined using the definitive term “would,” he immediately qualified it, testifying

Claimant’s conditions “could be consistent with a patient falling as [Claimant] had 

done....” R.R. at 68a (emphasis added). As such, Treating Physician’s opinion is 

equivocal as a matter of law. See Merchant v. Workers' Comp. Appeal Bd. (TSL, 

Ltd.), 758 A.2d 762, 770-71 (Pa. Cmwlth. 2000) (expert who at “most ... was 

willing to say that the [condition] ‘could be’ or ‘probably’ was related to the work 

incident” is equivocal) (emphasis in original).

Although Claimant reported no history of low back pain until her fall 

onto Employer’s concrete floor, the WCJ did not find that the cause and effect 

between her fall and her lower back condition were “so immediate, direct, and 

natural to common experience as to obviate any need for expert medical opinion.” 

Sokol v. Workmen’s Comp. Appeal Bd. (State Reg’l Corr. Facility at Mercer), 497 

A.2d 670, 671 (Pa. Cmwlth. 1985). Indeed, Claimant continued working, without 

restrictions, for almost ten months after her fall. F.F. Nos. 1(c), 1(f), 6. 

Because unequivocal medical testimony is required to establish 

causation of the alleged expanded injury, Claimant failed to establish her 2012 fall 
14

caused “an aggravation of degenerative lumbar disc disease, an aggravation of her 

chronic right shoulder pain, and left elbow chondramalacia.” F.F. No. 11. Treating 

Physician’s testimony on the causation of all of Claimant’s expanded injuries is 

accordingly deemed not to be sufficient as a matter of law. However, because 

Claimant limited the relief sought to only the lumbar and right shoulder, we reverse 

only that portion of the Board’s order pertaining to the lumbar and right shoulder. 

III. Conclusion

For the foregoing reasons, the Board’s order is reversed to the extent 

it affirmed the WCJ’s amendment to the work injury to include an aggravation of 

the degenerative lumbar disc disease and an aggravation of the chronic right 

shoulder pain and the Board’s order is affirmed to the extent it affirmed the WCJ’s 

amendment of the work injury to include left elbow chondromalacia.

__________________________________

JULIA K. HEARTHWAY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

JBS Distribution LLC, :

Petitioner :

:

v. : No. 3 C.D. 2016

:

Workers' Compensation Appeal :

Board (Delgado), :

Respondent :

O R D E R

AND NOW, this 16th day of November, 2016, the order of the 

Workers’ Compensation Appeal Board is REVERSED to the extent it affirmed the 

amendment to the work injury to include an aggravation of the degenerative 

lumbar disc disease and an aggravation of the chronic right shoulder pain, and the 

Board’s order is AFFIRMED to the extent it affirmed the amendment of the work 

injury to include left elbow chondromalacia.

__________________________________

JULIA K. HEARTHWAY, Judge